SCOTUS considers limits to the government's surveillance powers over personal technology
THIRD-PARTY BUSINESS RECORDS
But on appeal, Carpenter pressed his motion to suppress the cell-tower evidence, which the district court had rejected. The 6th U.S. Circuit Court of Appeals at Cincinnati also turned away his arguments, holding that Carpenter lacked any property interest or reasonable expectation of privacy in the cell-tower records acquired by the government under the Stored Communications Act.
The 6th Circuit panel acknowledged that in United States v. Jones, a 2012 Supreme Court case about long-term GPS monitoring of a suspected drug dealer, five justices had agreed that people have a reasonable expectation of privacy in information very similar to cell-site data. But the appeals court said Carpenter’s case was different because it “involves business records obtained from a third party.” Those records are closer to the landline call records that the high court had held were not entitled to Fourth Amendment protection in Smith v. Maryland in 1979.
“Cell-site data—like mailing addresses, phone numbers and IP addresses—are information that facilitate personal communications, rather than part of the content of those communications themselves,” the 6th Circuit said. “The government’s collection of business records containing these data therefore is not a search.”
Nathan Wessler, an American Civil Liberties Union lawyer representing Carpenter, says the Smith decision and the Stored Communications Act were products of an era when few Americans were carrying phones in their pockets.
“In this case, law enforcement went to Mr. Carpenter’s cellphone providers and got more than four months of cellphone records that created a granular map of everywhere he went,” Wessler says. “That is a chilling power.”
Digital Crime and Privacy
U.S. Solicitor General Noel J. Francisco argued in the federal government’s brief that the “third-party doctrine” long recognized by the high court applies here.
“Cellphone users voluntarily reveal to their providers information about their proximity to cell towers, so the providers can connect their calls,” Francisco said in the brief. “Users cannot reasonably expect that the providers will not reveal that business information to the government.”
John M. Castellano wrote an amicus brief on the federal government’s side for the Arlington, Virginia-based National District Attorneys Association. He says prosecutors use cell-site location data as an important investigative tool. They also use grand jury subpoenas and court orders short of a warrant to investigate identity theft, fraud, public corruption and other offenses. Those investigations would be seriously hampered by any restriction on the third-party doctrine, he says.
“You don’t always have probable cause at the time you are issuing a subpoena,” says Castellano, the deputy executive assistant district attorney for the Queens County DA’s office in Kew Gardens, New York. “The nature of crime has changed. It has taken full advantage of the digital era.”
But Wessler of the ACLU says the government “misreads Americans’ expectations of privacy in the digital age and sets the bar way too low.”
Ferguson of the University of the District of Columbia wrote an amicus brief on Carpenter’s side for a group of scholars of criminal procedure and privacy. The basic thrust is that the third-party doctrine is ill-suited for an age in which smart devices that transmit all manner of personal information to third parties are pervasive.
These include cellphones, smart cars, smart homes and smart medical devices within the body.
“It used to be that police officers had to sit in hot cars drinking cold coffee to conduct surveillance,” Ferguson says. “The idea of a 1970s-era law about old telephone technology governing this area just doesn’t make a lot of sense now.”
This article was published in the December 2017 issue of the ABA Journal with the title "Cell Block: The high court considers limits to the government’s surveillance powers over personal technology."
